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The Massive Expansion of America’s “Hard Left” May 13, 2009

Posted by rogerhollander in Criminal Justice, Torture.
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by Glenn Greenwald



Jesse Ventura was on CNN with Larry King last night and this exchange occurred, illustrating how simple, clear and definitively non-partisan is the case for investigations and prosecutions for those who ordered torture (video below):



VENTURA:  I don’t watch much TV. This year’s reading, I covered Bush’s life. I covered Guantanamo and a few other subjects.


And I’m very disturbed about it.


I’m bothered over Guantanamo because it seems we’ve created our own Hanoi Hilton. We can live with that?  I have a problem.


I will criticize President Obama on this level; it’s a good thing I’m not president because I would prosecute every person that was involved in that torture. I would prosecute the people that did it. I would prosecute the people that ordered it. Because torture is against the law.


KING: You were a Navy SEAL.


VENTURA: That’s right. I was water boarded, so I know — at SERE School, Survival Escape Resistance Evasion. It was a required school you had to go to prior to going into the combat zone, which in my era was Vietnam. All of us had to go there. We were all, in essence — every one of us was waterboarded. It is torture.


KING: What was it like?


VENTURA:  It’s drowning. It gives you the complete sensation that you are drowning. It is no good, because you — I’ll put it to you this way, you give me a waterboard, Dick Cheney and one hour, and I’ll have him confess to the Sharon Tate murders.


Let’s just repeat that:  “I would prosecute the people that ordered it. Because torture is against the law.”  That is the crux of the case for investigations and prosecutions.  That’s it.  Can anyone find a “liberal” or ideological argument anywhere in what Ventura said?  It’s about as far from a partisan or “leftist” idea as one can get.  Yet our establishment media has succeeded (as Digby recently argued) in converting this view into a “Hard Left,” “liberal” or “partisan” argument because that’s the only prism through which they can understand anything, and that’s their time-honored instrument for demonizing any idea that threatens their institutional prerogatives and orthodoxies (only the Hard Left favors this).


Ventura himself, like the argument he’s advocating, is also about as far from being a “leftist” or partisan as it gets.  He was elected Governor of Minnesota by running as the ultimate non-partisan, as a poorly-funded independent who defeated both the GOP and Democratic establishment candidates on a largely libertarian platform and on what he called “fiscal conservatism,” including large tax rebates.   Unlike the establishment-revering, prosecution-opposing pundits who are the true partisans — loyal spokespeople who fiercely defend Beltway culture and legal immunity for political elites above all else — Ventura is doing nothing more than expressing definitively independent and non-ideological political principles, ones that were quite obviously ingrained in him over the course of decades as an American and a veteran:  torture is wrong in all cases; it is illegal; and those who do it should therefore be prosecuted.


Former aide to Condoleezza Rice and former 9/11 Commission Executive Director Philip Zelikow yesterday became the latest to join Ventura by calling for investigations into torture, telling Laura Rozen:  “When there is this kind of collective failure, we need to learn from what happened.”  Gen. Barry McCaffrey two weeks ago pointed out that numerous detainees were “murdered” in U.S. custody — which is unquestionably true — and called for criminal investigations of the top-level political officials who sanctioned torture.  Gen. Antonio Taguba previously stated that “there is no longer any doubt as to whether the current administration has committed war crimes.  The only question that remains to be answered is whether those who ordered the use of torture will be held to account.”  Colin Powell’s former Chief of Staff, retired U.S. Army Col. Larry Wilkerson, this month endorsed both investigations and prosecutions for Bush officials who broke the law.  Bush 41 ambassador Thomas Pickering and Reagan-appointed FBI Director William Sessions wrote in The Washington Post that an independent investigation was a pre-requisite to moving beyond the torture era.  Ronald Reagan vehemently insisted that torture is inexcusable in all cases — no exceptions — and that those who do it must be prosecuted.


These are the people – Gen. McCaffrey, Gen. Taguba, Col. Wilkerson, Philip Zelikow, Jesse Ventura, Ambassador Pickering, Director Sessions — that our little David Ignatiuses deceitfully dismiss as “liberal score-settlers” and that our David Broders and Jon Barrys accuse of lying by masking their Hard Left thirst for partisan vengeance with false pretenses about a belief in the rule of law and contrived disgust at torture.   Our media stars have a script from which they mindlessly read — anyone who believes that political leaders should be held accountable for serious crimes must be a member of the “Hard Left” when the lawbreaking political leaders in question are Republicans — and they recite it over and over no much how evidence piles up in front of their noses proving how untrue it is.


Our media stars accuse everyone with any actual beliefs — and especially any beliefs that deviate from Beltway establishment orthodoxy — of being motivated by ugly “partisan” impulses because that’s the only way they are capable of seeing the world.  It’s the ultimate act of projection.  That’s how the most non-ideological and non-partisan principles (e.g.: government leaders who commit serious crimes should be held accountable; torture is wrong; Presidents shouldn’t eavesdrop on Americans without warrants where the law makes doing so a felony) are transformed into partisan, “ideological” views of the Hard Left, even when they are plainly nothing of the sort.  As commenter DCLaw1 wrote in explaining the media’s sudden obsession this week with whether Nancy Pelosi was briefed on the CIA’s interrogation program even though that issue has been known for years:



I want to point out that the main reason, if not the only reason, for this overwhelming media view is because the only lens through which they can see this issue – like every issue – is the Republican/Democrat or conservative/liberal lens. When one’s entire point of reference for even issues of egregious lawbreaking goes no further than fixating obsessively over the identity of the people and parties to the “controversy” and the issue’s putative effect on partisan politics, whether a leader of one party was informed of the crimes of the other takes on a meaning perversely greater than the evil of the underlying conduct itself.


Our establishment media simply cannot get beyond this stultifyingly narrow framework. It is pathological. Additionally, this staunch avoidance of anything approaching a substantive assessment of the actual illegal conduct, in favor of a petty fixation on the partisan “helps or harms” game, helps only the “side” that has committed the crimes and wrongdoing. No wonder our discourse is so unbelievably misshapen.


Few things better illustrate how warped our political discourse is than the media’s claim that advocating investigations and prosecutions for political lawbreakers who commit serious crimes, who torture, who illegally spy on Americans with no warrants, is the province of partisans on the “Hard Left,” even when people who are as far away from that as possible prominently advocate exactly that.


* * * * *


Beltway mavens are eager to declare that the torture controversy is ending, but these crimes are far too significant to sweep under the rug, no matter how unified the political and media establishments are in that effort.  In addition to the Ventura interview and the Zelikow call for investigations yesterday, here are some headlines just from the last 24 hours:


Interrogation Probe Should Include Congressional Leaders, Hoyer Says


US lawmakers to hear from Bush ‘torture’ dissenter


Top US Democrat under fire over ‘torture’ briefings


US lawmaker: Public needs all facts on alleged torture


Ire Over a Columnist, an Author of Torture Memos


Speaker Under Fire on Torture (“With a series of torture investigations already in the works . . . the issue simply isn’t going away“).


It’s difficult to avoid the conclusion that the President’s apparent contemplation of reversing himself on whether to release 60 new photographs showing brutal American abuse of detainees (outside of Abu Ghraib) is part of an effort to tamp down what is still, quite obviously, the growing political pressure not to simply “move beyond” the serious crimes that were committed.


* * * * *


The call for prosecutions from the newest member of America’s rapidly growing Hard Left:



 


 




Glenn Greenwald was previously a constitutional law and civil rights litigator in New York. He is the author of the New York Times Bestselling book “How Would a Patriot Act?,” a critique of the Bush administration’s use of executive power, released in May 2006. His second book, “A Tragic Legacy“, examines the Bush legacy.

How Obama Excused Torture April 17, 2009

Posted by rogerhollander in Barack Obama, Dick Cheney, George W. Bush, Torture.
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Former Reagan Justice Department official Bruce Fein writes that Obama’s decision to release CIA memos without prosecuting Bush administration officials flouts his constitutional duty.

by Bruce Fein

On Thursday, April 16th, in response to a lawsuit initiated by the American Civil Liberties Union, President Barack Obama released four redacted Office of Legal Counsel (OLC) memoranda from the Bush administration to the CIA justifying torture or cruel, inhumane, or degrading treatment. (The CIA’s enhanced interrogation techniques were modeled on the Chinese Communist coercive brainwashing program against Americans captured in the Korean War to induce false confessions). Each memorandum hedged its conclusions with substantial caveats, such as the absence of judicial precedents and concessions that reasonable persons could dispute their exculpatory conclusions. The memoranda were later renounced as bad law.

Obama, however, promised non-prosecution of all CIA personnel complicit in torture who relied on the flawed OLC advice. He further pledged to defend them from criminal investigations initiated by foreign jurisdictions and to indemnify them if they are held liable in damages for constitutional or statutory wrongdoing. Obama is similarly defending former OLC Deputy Assistant Attorney General John Yoo against a torture suit initiated by Jose Padilla, convicted of terrorism in 2007 after the government dropped charges that as an “enemy combatant” he plotted to set off a “dirty bomb.” The Yoo memoranda on torture have also been renounced and discredited. Obama also promised to follow the Bush-Cheney duumvirate in claiming secrecy for alleged national security secrets because “the world is dangerous.” Indeed, he did not voluntarily initiate release of the four OLC memoranda, but responded to a Freedom of Information Act suit. And President Obama has echoed the Bush-Cheney state secrets arguments to block lawsuits challenging the legality of spying on Americans without warrants in contravention of the Fourth Amendment or federal law, or seeking damages for torture. Moreover, Obama has been unable to recite a single instance where transparency proved more dangerous to the liberties of the American people than has secrecy, the birthplace of COINTELPRO, Shamrock, Minaret, Abu Ghraib, and torture of 14 so-called “High Value Al Qaeda” detainees in secret prisons abroad (according to the International Committee of the Red Cross).

On the same day Obama was excusing torture and promising more secret government, The New York Times published a front page story disclosing the National Security Agency’s apparently illegal interceptions of emails and phone calls of American citizens in the United States without individual judicial warrants. The interceptions exceeded even the sweeping group warrant authority to spy on persons reasonably believed to be outside the United States that were authorized in amendments to the Foreign Intelligence Surveillance Act (FISA) enacted last September. President Obama has declined to sanction a single official implicated in the latest apparent violation of a statute he supported as a senator. He has similarly chosen non-prosecution for former President Bush, former Vice President Cheney, and high level officials at the National Security Agency (NSA) and CIA who authorized more than five years of FISA felonies: namely, warrantless NSA spying on American citizens on American soil in flagrant contravention of FISA, about which more anon.

The evidence is now undeniable. President Barack Obama is flouting his unflagging constitutional obligation enshrined in Article II, Section 3 to “take Care that the Laws be faithfully executed.” He is also reneging on his signature campaign promise to restore the rule of law, transparency, and accountability to the White House. He is displaying the psychology of an arrogant Empire as opposed to a modest Republic in continuing and escalating the Bush-Cheney duumvirate’s global and perpetual war against international terrorism heedless of foreign sovereignties or the lives of civilians.

Even more disappointing, Obama has proven a political coward dangerous to the Republic. Before April 16, he had decided against any criminal investigation of the Bush-Cheney duumvirate or their inner circles for their boasted complicity in torture, i.e., waterboarding, which Attorney General Eric Holder has declared is torture. He has similarly declined investigations of extraordinary renditions that have occasioned, among other things, the indictments and in absentia trials of 26 CIA operatives in Milan, Italy, for the kidnapping and torture of Egyptian cleric Abu Omar.

Obama made no effort to square his refusal to investigate credible and substantial evidence of felonies with his constitutional obligation to faithfully execute, not sabotage the laws. He relied solely on politics, as though law was nothing more than a constellation of political calculations with ulterior motives. Obama insisted that investigations of Bush-Cheney would disturb the Toscanini-like symphony he had promised to the political class in the corridors of power. Comparable political calculations explain why Afghanistan’s President Hamid Karzai declines to prosecute the countless officials implicated in staggering corruption, inefficiency, and subjugation of women-all of which are deplored by President Obama.

In sweeping the Bush-Cheney lawlessness under the rug, Obama has set a precedent whitewashing White House lawlessness in the name of national security that will lie around like a loaded weapon ready for resurrection by any Commander-in-Chief eager to appear “tough on terrorism” and to exploit popular fear. Obama urges that the crimes were justified because the duumvirate acted to protect the nation from international terrorism. But Congress did not create a national security defense to torture or commit FISA felonies.

President Obama should have invoked his pardon power if he believed circumstances justified the crimes by Bush and Cheney and the CIA’s interrogators. A pardon or lesser clemency properly exposes the president to political accountability, as Bush discovered with Cheney’s chief of staff Scooter Libby and President Ford with former President Nixon. More significant, a pardon does not set a precedent making lawful what was unlawful. It acknowledges the criminality of the underlying activity, and acceptance of the pardon is an admission of guilt by the recipient. Pardons leave unsullied the doctrine of Ex parte Milligan (1866):”The Constitution of the United States is a law for rulers and people, equally in war and peace, and covers with the shield of its protection all classes of men at all times and in all circumstances. No doctrine involving more pernicious consequences was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”

Obama can be summoned against his own non-prosecution policy, secrecy, and non-accountability. In releasing the four OLC memoranda on April 16, Obama asserted: “Enlisting our values [like the rule of law or transparency] in the protection of our people makes us stronger and more secure. A democracy as resilient as ours must reject the false choice between our security and our ideals [like the rule of law or government in the sunshine]… I believe strongly in transparency and accountability… The United States is a nation of laws.”

These words should be taken cum granis salis. Bush and Cheney also insisted that everything they did was constitutional and indispensable to thwarting another 9/11. Obama’s promise of change has proven nothing more than verbal jugglery.

Bruce Fein was associate deputy attorney general under President Ronald Reagan, and has authored Constitutional Peril: The Life and Death Struggle for our Constitution and Democracy.

Obama Lawyers Invoke “State Secrets” to Block Warrantless Spying Lawsuit April 6, 2009

Posted by rogerhollander in Barack Obama, Criminal Justice, Torture.
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Posted by Liliana Segura, AlterNet at 10:15 AM on April 6, 2009.

It’s not the first time Obama’s DOJ has employed the tactic so often used by the Bush administration to block accountability for government crimes.

Oops, they did it again: lawyers for Barack Obama’s Department of Justice have invoked the “state secrets” privilege to block a lawsuit seeking to reverse one of the most scandalous policies of the Bush administration.

In a motion filed in a San Francisco court on Friday, attorneys for the Obama administration moved to dismiss a challenge to the National Security Agency’s notorious warrantless wiretapping program. “The information implicated by this case, which concerns how the United States seeks to detect and prevent terrorist attacks, would cause exceptionally grave harm to national security,” DOJ lawyers argued in the 36-page brief, echoing an argument made ad nauseum by the Bush administration.

 

 

The case, Jewel v. NSA, was filed in September of 2008 on behalf of five AT&T customers “to stop the illegal, unconstitutional, and ongoing dragnet surveillance of their communications and communications records,” according to the Electronic Frontier Foundation, the civil liberties organization that brought forth the suit. “Evidence in the case includes undisputed documents provided by former AT&T telecommunications technician Mark Klein showing AT&T has routed copies of Internet traffic to a secret room in San Francisco controlled by the NSA.”

Klein, the whistleblower who blew the lid off AT&T’s participation in the NSA spying program, was an employee at AT&T for 22 years but showed no qualms about exposing the company. “If they’ve done something massively illegal and unconstitutional — well, they should suffer the consequences,” Klein told the Washington Post in 2007. Teaming up with EFF, Klein has played a critical role in furnishing the evidence for multiple lawsuits brought against the NSA’s spying program, including Hepting v. AT&T, a class-action lawsuit against AT&T itself. (That case was brought forth in 2006, before Congress passed legislation granting immunity to telecoms that participated in the government’s warrantless wiretapping program.)

Although Jewel v. NSA is not a lawsuit against AT&T, the DOJ’s court motion displays its full support for the company. “All of plaintiffs’ claims require the disclosure of whether or not AT&T assisted the Government in alleged intelligence activities, and the (Director of National Intelligence) again has demonstrated that disclosure of whether the NSA has an intelligence relationship with a particular private company would also cause exceptional harm to national security”

It may have been fantasy to imagine that the Obama DOJ would allow AT&T — whose corporate logo graced the official goody bags at the Democratic National Convention this summer — to be at all vulnerable to litigation for its role in the warrantless wiretapping scheme, particularly after Obama himself cast a vote for telecom immunity. But its invoking of the state secrets privilege is a disturbing move — particularly because it is not the first time it has done so.

 

 

On Monday EFF sent out a press release condemning the Obama administration’s use of state secrets privilege to conceal the government’s criminal activity. “President Obama promised the American people a new era of transparency, accountability, and respect for civil liberties,” Senior Staff Attorney Kevin Bankston said in a written statement. “But with the Obama Justice Department continuing the Bush administration’s cover-up of the National Security Agency’s dragnet surveillance of millions of Americans, and insisting that the much-publicized warrantless wiretapping program is still a ‘secret’ that cannot be reviewed by the courts, it feels like deja vu all over again.”

Why is the Obama Administration Protecting Bush Officials?

Over e-mail, Cindy Cohn, legal director of EFF, called the legal filing by Obama’s DOJ “very significant.” “Obama is attempting to block the courts from considering serious constitutional issues raised in this case entirely,” she said. “This is the sort of disdain for the rule of law and the role of the courts that he campaigned against.”

 

 

Cohn added, “It’s also a continuation of the outrageous secrecy claims that Bush was criticized for — after all, the warrantless wiretapping is hardly a secret. We presented a box of Congressional testimony, Congressional admissions, news stories, and even a few books to the court describing it. The argument that this is still a secret really strains belief.”

 

 

Jewel v. NSA is not just a lawsuit against the NSA. It is also a lawsuit against the individuals who created the government’s spying program, including George W. Bush and his senior staff.

 

 

As Raw Story’s John Byrne points out, “in attempting to block a San Fransisco court from reviewing documents relating to the NSA program, the Obama Administration is also protecting other individuals named as defendants in the suit: Vice President Dick Cheney, former Cheney chief of staff David Addington and former Bush Attorney General Alberto Gonzales.” These, of course, are the same individuals many Americans would like to see prosecuted for their role in implementing the government’s “harsh interrogation” policies. But on the question of torture, the Obama administration has shown no inclination to bring former Bush officials to account.

Quite the opposite. In February Obama lawyers used the same “state secrets” tactic to block a lawsuit brought by the ACLU on behalf of five victims of extraordinary rendition — the CIA’s famed kidnap and torture program. “This case cannot be litigated,” Department of Justice lawyer Douglas Letter declared on February 9th, arguing that the case, Mohamed et al. v. Jeppesen Dataplan, should be thrown out. “The judges shouldn’t play with fire in this national security situation.”

ACLU director Anthony Romero decried the move. “Eric Holder’s Justice Department stood up in court today and said that it would continue the Bush policy of invoking state secrets to hide the reprehensible history of torture, rendition and the most grievous human rights violations committed by the American government.”

 

 

Now, warrantless spying can be added to the list.

 

 

“In our case we have no reason to believe that the warrantless wiretapping has ended,” said Cohn, “so at some point we have to call it Obama’s warrantless wiretapping.”

Liliana Segura is a staff writer and editor of AlterNet’s Rights and Liberties and War on Iraq Special Coverage.

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